Auckland TC 8 April 2022 – R5 – Peter Ferguson

Introduction:

Following the running of Race 5, the Driver of EXECUTIVE BANNER,  Mr Peter Ferguson defended a charge alleging a breach of Rule 869 (3)(b); namely that he shifted ground inwards causing interference to BET ON THE TIGER (Z Butcher) near the 100 metres.

The Respondent endorsed the Information ‘I do not admit the breach of the rule’. The charge was heard after the last race.

Rule 869 (3)(b) provides:

No Driver in any race shall drive carelessly.

Evidence:

Mr Dooley – Stipendiary Steward

At the commencement of his evidence Mr Dooley advised that there had been an issue with the quality of race film (replays) in terms of synchronising the race replays on  ‘large’ screen with the smaller ‘quad’ screen.  As it transpired during the course of the hearing, there were sufficient head, side and rear-view camera angles available to demonstrate the alleged incident and the Adjudicative Committee determined that none of the parties were disadvantaged in the presentation of their evidence.

Using the available video footage, Stipendiary Steward Mr Dooley identified the horses involved in the incident namely, BET ON THE TIGER driven by Mr Z Butcher and EXECUTIVE BANNER driven by Mr Ferguson.

Mr Dooley said that BET ON THE TIGER was racing on the pole line in the home straight and nearing the 100-metre mark, Mr Ferguson has shifted ground inwards into the running line of BET ON THE TIGER.  He conceded that when Mr Ferguson commenced the shift, he had a slight advantage over BET ON THE TIGER, but the manner of his shift resulted in contact to the hind leg of BET ON THE TIGER.  This, he said, constituted interference and resulted in BET ON THE TIGER pacing roughly and it lost ground as a consequence.

Mr Dooley stated that the manoeuvre was abrupt and did not allow Mr Butcher sufficient time to take hold of his drive.  He accepted that Mr Ferguson took corrective action, but it was too late.

In concluding his evidence, Mr Dooley stated that the inward shift by Mr Ferguson constituted a low-end breach of the Careless Driving Rule.

Mr Z Butcher (Driver of BET ON THE TIGER)

In his evidence, Mr Butcher accepted that there was contact between the two runners.  He stated that he was attempting to move down onto the pole line but his drive “tried to run away from the pole”. He said that Mr Ferguson had the advantage and he accepted that the interference suffered by BET ON THE TIGER, had no bearing on its final placing, albeit it lost ground.

Under cross examination from Mr Ferguson, Mr Butcher reiterated that his horse was running away from the pole line and that he wasn’t entitled to hold his position.  He also accepted that his horse’s head turned slightly and was not racing tractably and this impacted on EXECUTIVE BANNER’S back leg making contact with the sulky wheel of BET ON THE TIGER.

In re-examination Mr Dooley queried the basis for Mr Butcher’s comment about his horse not racing tractably, pointing out that the films do not support this scenario.  Mr Butcher accepted that the films tend to indicate that his horse was running in a straight line, but pointed out that the films don’t always reflect the reality of what occurs on the racetrack.

Mr P Ferguson (Driver of EXECUTIVE BANNER)

Mr Ferguson stated that his horse was racing greenly and when he shifted down, he had a clear advantage over Mr Ferguson’s drive and was therefore entitled to shift ground.  Mr Ferguson said that it was relevant that Mr Butcher has “pulled his horse around and his back leg has caught the back of his wheel”.

Mr Ferguson concluded his evidence by stating that he wasn’t careless and if anything, he was “a bit unlucky”.  He added that BET ON THE TIGER contributed to the problem, as it was the manners of that horse that caused his downward shift “to become tighter than it should have been”.

Decision and Reasons:

The standard of proof for a charge of this nature is on the balance of probabilities.  Having assessed the evidence and after reviewing the available films, the Adjudicative Committee is satisfied that it is more likely than not, Mr Ferguson’s downward shift which resulted in interference to BET ON THE TIGER constitutes careless driving.

The films indicate that in the home straight, EXECUTIVE BANNER was full of running and Mr Ferguson was searching for a clear run.  He angled downwards, which he was entitled to do, but in terms of his timing he was not sufficiently clear of BET ON THE TIGER who suffered interference causing it to pace roughly.  During the hearing it was said that the racing manners of BET ON THE TIGER, was a major contributing factor.  Based on the film evidence, the manners of BET ON THE TIGER were not the primary causative factor in the interference, but after being checked it did pace roughly.

The Shifting Ground Regulations provide that  “where a horse does not have clear passage during a race the driver shall be permitted to shift ground Inwards and ease another runner down the track provided such driver is in a position to do so by having sufficient advantage over the horse about to be shifted inwards and that horse is clear of other horses to its inside so it can be moved in”. However, there is an onus on a driver who elects to shift ground “to ensure the move is made with safety and does not cause interference by conducting it in a gradual and acceptable manner thereby enabling the driver of the runner being moved to be able to take the necessary action to accommodate the manoeuvre”.

On this occasion Mr Ferguson was entitled to shift inwards, but there was an error of judgement on his part in executing the inward manoeuvre in that he did not exercise the level of care that a driver of his seniority and experience is expected to exercise under the circumstances.   It is on that basis the charge is upheld, but the level of carelessness is deemed to be at the low end.

Submission for Penalty:

Mr Dooley submitted that Mr Ferguson has not breached the Careless Driving Rule in the past 12 months.  He described his record as “excellent”, adding that he has had 86 drives so far this season, and 490 the previous season.  He said his record is such that he should be afforded credit.

Mr Dooley submitted the breach was low end and referred to the Penalty Guide starting point of 10 drives or $500 fine.   Mr Dooley said that if a suspension was to be considered, Mr Ferguson generally has 4 or 5 driving engagements per meeting.

Mr Ferguson submitted that he has a “great” record and can’t recall when he was last charged with breaching the Careless Driving Rule. He said that given the circumstances of the breach, it should be categorised as being at the very low end and a fine in the vicinity of $250 and $300 would be appropriate.

Reasons for Penalty:

In consideration of penalty, the Penalty Guide provides a starting point of a 10-drive suspension or $500 fine.  After taking into account the submissions of both the Applicant and Respondent; noting the race film and the resultant impact on the affected runner, the Adjudicative Committee assessed the breach as low end.

The Respondent was given credit for his excellent record.  He was entitled to defend the charge, but is not entitled to credit for admission of the breach.  It was also noted that he won the race.  Referencing the Penalty Listings for Adjudicative Committees, it was determined that similar low-level breaches have mainly resulted in fines being imposed, albeit on a fact dependent basis there have also been 1-to-3-day suspensions imposed.

Accordingly, after evaluating all of the factors, the Adjudicative Committee determined a $400 fine to be an appropriate penalty in the circumstances of this case.

Conclusion:

The Respondent, Mr Ferguson was fined the sum of $400.